Page:1862 Territory of Dakota Session Laws.pdf/114

CHAP. VIII.] from having a fair trial. 2. Misconduct of the jury or prevailing party. 3. Accident or surprise, which ordinary prudence could not have guarded against. 4. Excessive damages, appearing to have been given under the influence of passion or prejudice. 5. Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract, or for the injury or detention of property. 6. That the verdict, report, or decision, is not sustained by sufficient evidence, or contrary to law. 7. Newly discovered evidence material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial. 8. Error of law occurring at the trial, and excepted to by the party making the application.

. 295. A new trial shall not be granted on account of the smallness of damages in an action for an injury in the person or reputation, nor any other action where the damages shall equal the actual pecuniary injury sustained.

. 296. The application for a new trial must be made at the term the verdict, report, or decision is rendered, and except for the cause of newly-discovered evidence, material for the party applying, which he could not with reasonable diligence have discovered and produced at the trial, shall be within three days after the verdict or decision was rendered, unless unavoidably prevented.

. 297. The application must be by motion upon written grounds, filed at the time of making the motion. The causes enumerated in subdivisions two, three, and seven, of section two hundred and ninety-four, must be sustained by affidavits showing their truth, and may be controverted by affidavits.

. 298. Where the grounds for a new trial could not, with reasonable diligence, have been discovered before, but are discovered after the term at which the verdict, report of referee, or decision was rendered, or made, the application may be made by petition, filed as in other cases; on which a summons shall issue, be returnable and served, or publication made as prescribed in section sixty-nine. The facts stated in the petition shall be considered as denied without answer, and if the service shall be complete in vacation, the case shall be heard and summarily decided at the ensuing term. The case shall be placed on the trial docket, and the witnesses